Employment Eye - Travel to work can be 'work'

Sarah Lamont follows up on our recent Alert on Tyco Integrated Services, and resolves some of the potential confusion over the practical and cost implications of the decision that travel time can count as 'work' for mobile workers.

Sarah Lamont follows up on our recent
Alert on Tyco Integrated Services, and resolves some of the
potential confusion over the practical and cost implications of the
decision that travel time can count as 'work' for mobile
workers.

The background

'Working time' under the Working Time Directive ('the
Directive') is defined as any period during which a worker is

working

at the employer's disposal; and

carrying out their activities or duties.

The Directive also defines "rest period" as any period which is
not working time. Under the Directive, workers are entitled to
minimum rest breaks and, unless the worker has opted out, a maximum
working week of 48 hours.

The Directive is transposed into our domestic legislation by the
Working Time Regulations 1998 (SI 1998/1833) (WTR).

Neither the Directive nor the WTR state whether travel to and
from a place of work, or between places of work, should be
considered 'working time'. Employers generally include travel
during the working hours as 'working time' and travel from home is
usually excluded.

The facts

The case of Federacion
de Servicios Privados del sindicato Comisiones Obreras v Tyco
Integrated Security SL, concerns security system installation
and maintenance staff who are required to travel to various
locations specified by their employer in order to carry out their
work. The workers in question do not have any fixed place of
work; they travel from home to the first customer of the day, then
to various locations and back home again. However, this
arrangement was only put in place following the closure of the
company's regional office; prior to that, the workers collected
their vehicles and schedules for the day from that office and
travel to and from their first and last appointments was included
in their working day.

The workers brought a complaint in the Spanish courts, alleging
that their employer is in breach of the Working Time Regulations
1998 by excluding from their 'working time' the time that is spent
travelling to and from home, at the beginning and end of the
day.

The decision

As we reported in
June 2015, the Advocate-General's initial Opinion on this case
was that travel time to and from the first and last customers of
the day should be counted as working time, because the workers are
at the employer's 'disposal': they are subject to the authority of
the employer and travel is an integral and inherent part of their
work.

Earlier this month, the European Court of Justice (ECJ) agreed
with the Advocate-General's conclusions and reasoning. The
ECJ said that

the first and last journeys of the day were counted as 'working
time' before the closure of the regional office, so it followed
that these journeys were part of the workers carrying out
their duties

the company has control of which customers the workers see and
when, so the workers are at the company's
disposal

the workers are effectively 'at work' on their
first and last journeys of the day; the fact that the journeys
happen to start and finish at home is something of a red herring.
The closure of the regional office meant that the employees lost
the ability to determine the distance from their homes to the usual
location of the start and finish of their day.

So, for peripatetic workers (i.e. workers with no fixed place of
work), travel time to various clients or customers, to or from
home, can be considered to be part of workers' working
day.

What does this mean for me?

This decision provides clarity for employers that travel time
for mobile workers to their first appointment of the day, and from
their last appointment, is 'working time'. This will affect
all workers who have no fixed place of work, such as community
nurses, community care workers and repair and maintenance
workers.

The key concern amongst most employers will be the potential
impact on cost; but, contrary to many press reports, this decision
does not relate to pay. The Tyco decision considered the definition
of 'working time' only for the purpose of calculating workers'
entitlements to rest breaks and maximum working week. You will,
therefore, need to check whether this decision affects your workers
and, if so, audit whether the increase in their 'working' hours
triggers increased rest breaks or means that they will exceed the
maximum 48 hour working week (if they have not opted
out). However, it is unlikely this will have an automatic
impact on pay.

Furthermore, please note that the National Minimum Wage
Regulations expressly exclude travel time from home. This is
reflected in the non-statutory minimum wage
guidance from the Department for Business Innovation and Skills
which states, at page 33, that "Time spent travelling between home
and someone's normal place of work and back again does not count as
time when the minimum wage is payable." However, the guidance
does suggest that travel between work assignments should be counted
for the purposes of the national minimum wage – and it has been
reported that this is currently the subject of an employment
tribunal challenge to home-care provider, MiHomecare, which
excludes its care workers' travel time between home visits when
making pay calculations.

In the coming months, it is possible that unions will see the
Tyco decision as an opportunity to put pressure on
the government to change the National Minimum Wage Regulations, so
that travel time to and from home is included in calculations for
the purpose of paying the minimum wage (and the new 'living
wage'). However, for the time being, this decision only
applies to the calculation of working time for the purpose of
workers' maximum working week and entitlements to rest
breaks.

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The information on this website is of general interest about current legal issues and is not intended to apply to specific circumstances. It should not, therefore, be regarded as constituting legal advice.